Code Details

Code of Civil Procedure – CCP
PART 2. OF CIVIL ACTIONS [307 – 1062.34] ( Part 2 enacted 1872. )
TITLE 2. OF THE TIME OF COMMENCING CIVIL ACTIONS [312 – 366.3] ( Title 2 enacted 1872. )

CHAPTER 5. The Commencement of Actions Based Upon Professional Negligence [364 – 365] ( Chapter 5 added by Stats. 1975, 2nd Ex. Sess., Ch. 1. )

Exact Statute Text

(a) No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.

(b) No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.

(c) The notice may be served in the manner prescribed in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2.

(d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.

(e) The provisions of this section shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name, as provided in Section 474.

(f) For the purposes of this section:

(1) “Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider;

(2) “Professional negligence” means negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.

(Amended by Stats. 1975, 2nd Ex. Sess., Ch. 2.)

CCP § 364 Summary

Code of Civil Procedure § 364 is a crucial California statute that governs the process for initiating a medical malpractice lawsuit. It mandates that anyone intending to sue a healthcare provider for professional negligence must first give the defendant at least 90 days’ prior notice of their intention to commence the action. While no specific form is required for this notice, it must clearly outline the legal basis of the claim, the type of loss sustained, and specifically detail the nature of the injuries suffered. The statute also addresses how the notice can be served and includes an important provision: if the notice is served within 90 days of the expiration of the applicable statute of limitations, the deadline for filing the lawsuit is automatically extended by 90 days from the date the notice was served. It explicitly excludes unknown defendants (fictitious “Doe” defendants) from this notice requirement and provides specific definitions for “health care provider” and “professional negligence” within its context.

Purpose of CCP § 364

The legislative intent behind California Code of Civil Procedure § 364, enacted as part of the Medical Injury Compensation Reform Act (MICRA) in 1975, is multifaceted. Primarily, it aims to encourage early settlement of medical malpractice claims and reduce the need for costly and time-consuming litigation. By requiring a 90-day waiting period before a lawsuit can be filed, the statute provides healthcare providers and their insurers with an opportunity to conduct an initial investigation into the claim, evaluate its merits, and potentially engage in settlement discussions. This pre-litigation window can lead to out-of-court resolutions, benefiting both plaintiffs and defendants by saving legal fees, court costs, and the emotional toll of a trial. It also helps to alleviate the burden on the judicial system by reducing the number of cases that proceed to formal litigation, thereby streamlining the process for resolving medical negligence disputes in California.

Real-World Example of CCP § 364

Consider the case of Maria, who underwent a routine appendectomy. Several weeks post-surgery, she experienced persistent pain and complications, eventually discovering that a surgical sponge had been left inside her body. Maria consults a personal injury attorney, who confirms that this constitutes potential medical malpractice by the surgeon and hospital. The attorney advises Maria that before filing a lawsuit, they must comply with CCP § 364.

Maria’s attorney drafts a “Notice of Intent to Sue,” specifying the exact nature of the professional negligence (failure to remove a surgical sponge), the injuries sustained (infection, chronic pain, need for a second surgery), and the legal basis for the claim. This notice is then formally served on the surgeon and the hospital via certified mail. From the date of service, Maria and her attorney must wait at least 90 days before they can officially file the complaint in court.

Crucially, if the one-year statute of limitations for Maria’s claim was set to expire in 45 days, serving the CCP § 364 notice would automatically extend that deadline by 90 days from the date the notice was served. This extension provides Maria’s legal team with additional time to finalize their investigation, gather expert opinions, and prepare a comprehensive lawsuit, ensuring her legal rights are preserved while complying with the statutory waiting period.

Related Statutes

• CCP § 340.5 – Statute of Limitations for Medical Malpractice: This is the primary statute that sets the deadlines for filing medical malpractice lawsuits in California. It generally requires an action to be commenced within three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. CCP § 364(d) directly interacts with this by extending the one-year discovery period when the notice of intent to sue is served close to its expiration.
• CCP § 474 – Fictitious Name (Doe) Defendants: This section allows a plaintiff who is unaware of a defendant’s true identity at the time of filing a complaint to name them using a fictitious name (e.g., “Doe 1”). CCP § 364(e) specifically exempts such “Doe” defendants from the 90-day notice requirement, recognizing that notice cannot be provided to an unknown party.
• Business and Professions Code, Division 2 (commencing with Section 500): This broad division of the Business and Professions Code governs the licensing, regulation, and professional conduct of various healthcare professionals in California. CCP § 364(f)(1) directly references this division in its definition of “health care provider,” clarifying who falls under the statute’s notice requirements.

## Case Law Interpreting CCP § 364

• [Woods v. Young (1991) 53 Cal.3d 315](https://scholar.google.com/scholar?hl=en&as_sdt=4000000000000000&q=Woods+v.+Young+53+Cal.3d+315&btnG=): This landmark California Supreme Court case is crucial for understanding the interplay between CCP § 364 and the statute of limitations (CCP § 340.5). It held that the 90-day notice requirement of CCP § 364(a) tolls (pauses) the one-year statute of limitations for medical malpractice actions when the notice is served within 90 days of its expiration. However, it clarified that this tolling provision does not extend the three-year “outer limit” for filing an action.
• [Broadway v. Danoff (2020) 51 Cal.App.5th 1111](https://scholar.google.com/scholar?hl=en&as_sdt=4000000000000000&q=Broadway+v.+Danoff+51+Cal.App.5th+1111&btnG=): This appellate court decision reaffirmed that the notice of intent to sue must *precede* the filing of the medical malpractice action. It clarified that serving the notice *after* the complaint has already been filed does not retroactively satisfy the statutory requirement of CCP § 364(a), and such a lawsuit is subject to dismissal for non-compliance.
• [Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208](https://scholar.google.com/scholar?hl=en&as_sdt=4000000000000000&q=Preferred+Risk+Mutual+Ins.+Co.+v.+Reiswig+21+Cal.4th+208&btnG=): While not directly about the notice itself, this California Supreme Court case provides important clarification on the definition of “professional negligence” under MICRA, which is the foundational term for applying CCP § 364. It helps determine which types of claims against healthcare providers fall under this statute’s specific requirements.

Why CCP § 364 Matters in Personal Injury Litigation

Code of Civil Procedure § 364 is a cornerstone of California medical malpractice litigation, profoundly impacting both plaintiff and defense strategies. For anyone pursuing a personal injury claim involving alleged professional negligence by a healthcare provider, strict adherence to this statute is non-negotiable.

For Plaintiffs and Their Attorneys:
Failing to serve the 90-day notice *before* filing a lawsuit can lead to the dismissal of a case, regardless of its merits. This makes CCP § 364 a critical procedural hurdle that plaintiff attorneys must meticulously manage. However, subdivision (d) provides a vital safety net, acting as an automatic extension of the statute of limitations if the notice is served within 90 days of the deadline. This provision is often a strategic lifeline, allowing attorneys crucial extra time to gather evidence, consult with medical experts, and prepare a robust complaint without sacrificing their client’s right to sue. It also encourages an early, thorough evaluation of the claim, potentially leading to pre-litigation settlements and avoiding the protracted expense of a trial.

For Defendants (Healthcare Providers, Hospitals, and Their Insurers):
The 90-day notice period is a valuable opportunity. It provides defendants with early warning of an impending lawsuit, allowing them to proactively investigate the allegations, preserve relevant medical records, interview staff, and assess potential liability. This advance notice facilitates an early evaluation of the claim’s strength, enabling healthcare providers and their insurers to consider settlement offers before formal litigation begins. Resolving claims early can significantly reduce legal costs, reputational damage, and the overall financial burden associated with medical malpractice lawsuits.

In essence, CCP § 364 serves as a mandatory “cooling-off” period, designed to facilitate resolution and encourage communication between parties before the formal commencement of a lawsuit. Its implications for timing, strategy, and compliance make it one of the most significant preliminary steps in any California medical malpractice claim, demanding careful attention from both clients and their legal representatives.